Cyprus Supreme Court annuls a school master's move as not a transfer under Law 12/65 s.7(3).

[*1390] 1968 November 23

(TRIANTAFYLLIDES, J)

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution

Andreas Savvides,

Applicant,

and

The Republic of Cyprus, through

The Educational Service Committee,

Respondent.

(Case No. 290/68).

Secondary Education School Masters - Transfer from one school to another within the same town not resulting in any change of duties and not necessitating change of residence - Does C not amount to a ‘transfer' in the sense of section 7(3) of the Greek Communal Chamber (Transfer of Exercise of Competence) and the Ministry of Education Law 1965 (Law 12/65) but only to a ’move' from one school to another.

Educational Service Committee - No competence to deal with 'moves’ of Secondary Education School Masters - Section 7(3) of law 12/65 (supra).

Transfer - Meaning of and interpretation to be given thereto in the context of s.7(3) of law 12/65 (supra) and article 125(1) of the Constitution -- Distinction between the terms ’transfer’, 'move' and ’posting’.

L. Papaphilippou, for the Applicant.

G. Tornaritis, for the Respondent.

JUDGMENT

The following Judgment was delivered by:

TRTANTAFYLLIDES J: In this case the Applicant complains, in effect, against the decision of the Respondent Educational Service Committee to, allegedly, transfer him, [*1391] as from the 1st September 1968, from the Technical School, Limassol, to the First Boys Gymnasium (Lanition Gymnasium), Limassol.

From the material before me it appears that the Applicant is an Art master, coming under the Department of Secondary and Higher Education in the Ministry of Education, the Head of such Department being Mr. Frixos Vrahas; also, that he was under such Department while teaching Art at the Technical School, and that he will continue to be under the same Department while teaching Art at the Gymnasium in question; the Applicant’s duties will not be appreciably changed by the fact that he has changed schools.

It is not in dispute that masters who come under the said Department of Secondary Education - and who are not masters in technical education or trainers for technical subjects, coming under the Department of Technical Education in the Ministry of Education may, and do, teach subjects of their specialty which are included in the curricula of Technical Schools.

The Applicant's alleged transfer was decided upon during a series of meetings of the Respondent Committee which lasted from the 3nd July, 1968, to the 9th July, 1968, (see its relevant minutes, exhibit 2); his name appears in that class of several decisions which is devoted to "transfers / moves and postings" (μεταθέσεις/μετακινήσεις και τοποθετήσεις), and such decisions were published in the daily press on the 11th July, 1968 (see exhibit 9).

The Applicant was sent a letter dated the 15th July, 1968, by which he was informed that the Respondent Committee [*1392] had. decided to move him (μετακινήση) from the Technical School, Limassol, to the First Boys’ Gymnasium Limassol, as from the 1st September, 1968 (see exhibit 1A); as it appears from the envelope in which this letter was sent (see exhibit 1B), it was received in Limassol on the 21st August, 1968.

It is significant to note that in such letter - which is a cyclostyled notice - there are also to be found the alternative expressions “to transfer” and “to post” (μεταθέση, τοποθετήση) and both of them have been deleted.

The Applicant, at the material time, was away in London, and he received the said letter on the day after his return to Cyprus on the 20th August, 1968. In the meantime, while in London, he had seen in a Cyprus newspaper that he had been moved from one school to another, and had given instructions for the filing of this recourse, which was filed on the 17th August, 1968.

It may be mentioned at this stage that on the 26th March, 1968, the Applicant had applied to be transferred from Limassol to Nicosia (see exhibit 3) but he was informed by letter dated, again, the 15th July, 1968 (see exhibit

h) that his request could not be met; by this recourse he does not complain against the decision not to grant such request; so we are not concerned with this matter at all.

It has been, mainly, submitted by counsel for the Applicant that the relevant decision is not duly reasoned, and that, moreover, it has been taken contrary to section 25(4) of the Masters of Communal Secondary Schools Law, 1963, (Greek Communal Law 10/63) in that the Applicant was not given advance [*1393] notice about his “transfer” - from one school to another in Limassol -- being contemplated, so as to enable him to make representations in the matter before a final decision about it were to be taken.

Before considering the validity of the aforementioned submissions - (and as a matter of fact, at first, 3 counsel for the Respondent agreed that, -under section 25(4) of Law 10/63, notice of the contemplated “transfer” had to be given to the Applicant, but later he changed his stand, during the course of the hearing, after further reflection on the matter, and submitted that what was required was, only, a notice about the “transfer” having already been decided) I have had to examine whether, in fact, the Applicant has been “transferred”, or merely “moved”, from one school to another in Limassol. In other words, whether what was decided upon in his case was a transfer (μετάθεσις) or only a move (μετακίνησις), as it was expressly stated in the official notice given to him by the letter dated the 15th July, 1968 (exhibit 1A).

In the light of the interpretation given to the term “transfer” in the context of Article 125(1) of the Constitution, in relation to the powers of the Public Service Commission, (see Nedjati and The Republic, 2 R. S.C.C. 78 and Yiorkas and The Republic, 5 R.S.C.C., 56), and because there is no reason to differentiate between the scope of the relevant powers of the Public Service Commission and those of the Respondent Committee under section 7(3) of The Greek Communal Chamber (Transfer of Exercise of Competence) and The Ministry of Education Law 1965, (Law 12/65) - such Committee having been set up as an organ analogous to the Public Service [*1394] Commission in respect of educationalists and having been vested with powers closely similar to those of the Public Service Commission in respect of public officers - I have reached the conclusion that the same interpretation should be given to the term “transfer” in the context of section 7(3) of Law 12/65 as it has been given to such term in the context of Article 125(1) of the Constitution.

It follows, that, as the move of the Applicant which is complained of, has not resulted in any change of his duties and does not necessitate a change of his residence, and moreover lie continues to serve under the same Department of the Ministry of Education as before, such move does not amount to a transfer in the proper sense of the term (μετάθεσις), and in the sense of such term as found in section 7(3) or Article 125(1), but it is, indeed, only a move (μετακίνησις) from one school to another, in the same town, for the teaching of the same subject - as, after all, it was regarded by the Respondent Committee when it decided it. Nor can it be said that such move should be treated as being, in effect a transfer, in that - as argued by counsel for the Applicant - it deprives the Applicant of his prospects of promotion under section 13(2) of Law 10/63, because, in my view, on a proper reading of the said section - and this view is shared by counsel for the Respondent - no such deprivation is entailed, at all.

In Greece, under the legislation in force, an express distinction is made between a transfer (μετάθεσις) and a move (μετακίνησις) of a public officer. In Cyprus, we do not have this distinction laid down by statute, but it has already been made by case law, as aforesaid; in this respect, and for the [*1395] sake of illustrating such a distinction, it may be useful to refer to Decision 364(57) of the Greek Council of State.

The powers of the Respondent Committee under section 7(3) of Law 12/65, like the powers of the Public Service Commission under Article 125(1) of the Constitution, (see Papapetrou and The Republic 2 R.S.C.C. 61, at p. 66), are exhaustively enumerated; therefore, as the decision complained of by the Applicant was not, in view of the foregoing, a transfer in the sense of the said section 7(3) it follows that such decision has been taken by the Respondent Committee without competence and it has to be annulled on this ground. It is thus, declared to be null and void and of no effect whatsoever; and, in view of this, none of the other issues raised in this case need be determined.

Of course, it does not follow that all moves, such as that of the Applicant, which were decided upon by the Respondent together with the move of the Applicant, and which have not been challenged by recourses, should be treated as having been invalidated by virtue of the outcome of the present case; this Judgment applies only to the sub judice decision, and as regards other cases it can serve only as a precedent laying down the law for the future.

In concluding I might add the following: -

The fact that in Law 10/63 there is no mention being made of a move (μετακίνησις) has not prevented me from distinguishing between a transfer, in the proper sense, (μετάθεσις), [*1396] and a move (μετακίνησις), because the latter is an administrative arrangement, which does not alter the status of an educationalist, and it, therefore, did not necessarily have to be provided for expressly by legislation.

Also, I am quite satisfied that what took place in this case is not a posting (τοποθέτησις), in the sense of Law 10/63, because it does appear that a posting, as understood in Administrative Law and from the context of the relevant legislation, takes place, as a rule, only on appointment or promotion; otherwise, if every change of place of work would amount to a new posting, then there would have been no need to distinguish between a posting and a transfer.

It is now up to the appropriate authority, in the Ministry of Education, to decide afresh as regards the school in Limassol where the Applicant will be teaching.

In the result this recourse succeeds, but, in of the ground on which it has succeeded - which was not initially by counsel for the Applicant - there shall be order as to costs.

Sub judice decision

annulled; no order

as to costs.